So I'm surfing around Google looking up my business name and validating keywords, when I come across something very interesting.

Apparently, there is another company (http://www.thewebarchitect.net) with my company name on it, TWA Studios. This company is out of Ontario, Canada, and I am here in the US.

I do a little diggin around the site, and it says they opened their doors on Nov 2003. I opened my doors in 1999 and incorporated in March 2003, a few months before this place.

I know there are some legal brains on this forums, I've seen them before. I was wondering of this is something I should concern myself with and seek legal advice from my lawyer, or since it is outside the US I have no case?

Cheers.

It's outside the US, so unfortunately you're buggered. Unless you're some sort of transnational corporation?

you could try to get there domain name if thats whats bothering you??? but that may not happen for a long time and they could just be an org funded by rich people with nothing else to buy

so you never know, let me ask are they messin with your customers and who you market too?

Im wondering if you are able to gain an international trademark on the name and force them to change their name. Not entirely sure how that works though.

Did you trademark your name? Since you haven't mentioned it - I doubt you did. You have no case for the domain name or anything else.

Chet

You can't trademark a name if you know full well there is someone else using it! Especially if it is similar to another business.

In order to get an international trademark under the Madrid Protocol, yes you'd have to register first in the US and then under that Protocol.

But in my layman's opinion I don't see this as a trademark infringement anyway. They're incorporated as TWA Studios, Inc., which gives them legitimacy, but they don't seem to using it as either a trade name or a trademark. It's just the name of a corporation.

I'd have no problem at all incorporating as TWA Studios, Inc. here in New York (assuming no one else has done so), and as long as I don't use that name in a way that infringes on your mark (that is, in general, I don't use it in trade in an area of business similar to yours) I could keep that name as long as I wanted to.

That's my understanding of what's in play here but of course an attorney could be your best bet if you're concerned about it.

Originally posted by JayC
In order to get an international trademark under the Madrid Protocol, yes you'd have to register first in the US and then under that Protocol.

But in my layman's opinion I don't see this as a trademark infringement anyway. They're incorporated as TWA Studios, Inc., which gives them legitimacy, but they don't seem to using it as either a trade name or a trademark. It's just the name of a corporation.

I'd have no problem at all incorporating as TWA Studios, Inc. here in New York (assuming no one else has done so), and as long as I don't use that name in a way that infringes on your mark (that is, in general, I don't use it in trade in an area of business similar to yours) I could keep that name as long as I wanted to.

That's my understanding of what's in play here but of course an attorney could be your best bet if you're concerned about it.

I do own the domain name as you can see from my signature. I do not, however, have it trademarked. This site is selling just about the same exact services I am, except for game servers.

Thanks for the feed back.

Originally posted by gilbert
you could try to get there domain name if thats whats bothering you??? but that may not happen for a long time and they could just be an org funded by rich people with nothing else to buy

so you never know, let me ask are they messin with your customers and who you market too?

I don't believe they have stumbled into my maket, yet, as I advertise my services across varies areas that don't yet include Canada. However, Canadian consumers can obviously see and use my services and might think that site is an extension of mine and personally, I really don't like the design :)

I bumped into them in the search results, where they have not been before.

Originally posted by twastudios
I do own the domain name as you can see from my signature. Yep, but my point is that they're not using the name in business as a mark, a trade name, or a domain name, as far as I can see from visiting their site. I may be missing such a use, but it appears to be being used as nothing more than the name of their corporation.

There's clearly no domain name infringement, and as far as I can see and under my understanding of trademark principles there is no trademark infringement as long as they don't use the name to identify a product or service, or as a trade name. All of that, of course, irregardless of the issues of trademark registration and national jurisdiction.

Good points JayC.

How many people here have trademarked their name?

Originally posted by twastudios
Good points JayC.

How many people here have trademarked their name?

It was step 4 of our business plan. ;)

Yeh, its like step 15 of ours, not quite got there yet.

Wait until we're a PLC, then we'll consider :D

Originally posted by JayC
Yep, but my point is that they're not using the name in business as a mark, a trade name, or a domain name, as far as I can see from visiting their site. I may be missing such a use, but it appears to be being used as nothing more than the name of their corporation.

There's clearly no domain name infringement, and as far as I can see and under my understanding of trademark principles there is no trademark infringement as long as they don't use the name to identify a product or service, or as a trade name. All of that, of course, irregardless of the issues of trademark registration and national jurisdiction.

i beg to differ, TWA is a registered trademark of the TWA airline people. id be more concerned about that!

ps the twastudios site is down, was that intentional?

Originally posted by twastudios
How many people here have trademarked their name?
I regret doing this more than 5 years ago. Unless you badly need it, don't register. Pure waste of money.

Pure waste of money


It is only a waste of money until someone tries to steal it.

I mean, how would you feel if you did not trademark your name, and then later find out someone just yanked it from you, and decided to sue you for using their trademarked name?

Be careful with this.. if clients see you going after someone for something in a matter such as this, with too little provocation, you're going to end up with a rep similar to Microsoft. No one wants to be known as the community jackass who picks on everyone else when they don't get their way. It is understandable that you would want to protect your name/image, but unless you've actually found them to be hurting your business or sales, I'd put it on the back burner for now.

Originally posted by LaurenStephens
i beg to differ, TWA is a registered trademark of the TWA airline people. id be more concerned about that!

ps the twastudios site is down, was that intentional?

Um. no it was not intentional. Actually, it was down courtesy of Server Matrix (AKA The Planet), who cannot seem to figure out why my 2nd new box keeps going offline. It is the 2nd box in the past week and a half from them, and it went down again this morning for no apparent reason. Completely new box.

But I digress....

My last name is Twa. Hence the TWA Studios.

Originally posted by Rman2003
Be careful with this.. if clients see you going after someone for something in a matter such as this, with too little provocation, you're going to end up with a rep similar to Microsoft. No one wants to be known as the community jackass who picks on everyone else when they don't get their way. It is understandable that you would want to protect your name/image, but unless you've actually found them to be hurting your business or sales, I'd put it on the back burner for now.

If I had the kind of money Microsoft has, I proabably would have crushed them where they stand LOL

Seriously, I'm not too concerned about them but I did want to get the thoughts of the "community" so as not to be a jackass.

In regards to my clients, I'm protecting the company to protect the clients. No company, no clients, no serivce etc etc which is why I'm going to be looking into trademarking what I can.

Gutted. Maybe as good move would be to put a statement distancing yourself from that company or domain name.

Originally posted by twastudios
Good points JayC.

How many people here have trademarked their name?

Using your name as a trademark or servicemark does not require registration, just as creating an original work of writing, music, etc. doesn't require obtaining a copyright -- it just makes things easier legally if there's ever any dispute over ownership.

If you've used a name in interstate commerce, and have included the TM symbol next to it, it's considered your trademark (as long as no one else in the same field has used it before you).

Registering a trademark simply gives you the benefit of the doubt if you sue or are sued for use of the trademark. With a registered trademark the other party using your trademark has to prove that they own the mark, as you're considered the owner because of the registration. (Once registered you're able to legally use the (R) symbol next to your mark.)

If you don't register the name but simply use the TM symbol you can still claim the mark, but the onus is on you to prove ownership if it ever goes to court.

So, any of you who plan to register some day should immediately incorporate the TM symbol next to your mark graphics (like we have http://www.systame.com), though you should do a cursory search on the internet to see if anyone else in your field is using it..

Professional trademark search companies charge several hunderd dollars to do thorough searches in preperation for registering a mark.

For more detail on the subject check out this book:
http://www.nolo.com/lawstore/products/product.cfm/ObjectID/02622C60-2769-4BE2-951FAEF145D01C85/catid/D8932879-DC34-43DF-BF65FC92D55FEE5D

Originally posted by systame


So, any of you who plan to register some day should immediately incorporate the TM symbol next to your mark graphics,

BTW, it's MUCH harder to get a trademark registered on simple acronyms/initials (like TWA -- excepting the airline of course).

The easiest names to get registered are those that are unique/made-up -- like Yahoo, eBay. Pharmaceutical companies are very good at this -- zoloft, viagra :)

Originally posted by ANMMark
It is only a waste of money until someone tries to steal it.

I mean, how would you feel if you did not trademark your name, and then later find out someone just yanked it from you, and decided to sue you for using their trademarked name?

Thats exactly the case with twa, i think trademark registeration should be kept a side untill your making some good money, yes i know it feels bad to see someone else with your name, but in my startup i would rather spend money on fine tuning my ad campaigns and hosting model than trademark my company name. After a few months down the line yes i would definetly trademark the name.

Thanks

Tradmarking TWA Studios will most likely be next to impossible given the fact that it is so close to TWA (the airline).

It's always been an ongoing joke with my family. Especially when TWA went under. Whenever I fly American Airlines always cards me at the counter and makes me pull out my credit cards, driver license, whatever I can show to prove it. LOL. It gets really annonying when people spell it back to me, instead of saying it. Imagine of your name was Krishnanbalabmba and everyone you met said, "Hello Mr. K-r-i-s-h-n....." You get the idea.

Yaser: I have basically taken your approach although I know I should probably have considered it a little more in depth.

Systame: Unfortunately, I don't have the creative power that spits out names like zolof or viagra. They must have some people locked in a room called the stupid names lounge where they have to think of things that have nothing to do with each other and are basically hard to spell. I just went with something including my last name.

I might just have to consider a name change. Any suggestions? Maybe I should have a contest...

Originally posted by twastudios

I might just have to consider a name change. Any suggestions? Maybe I should have a contest...

TeeDubya-A Studios, knowhymsayn?

:D

Medications are named stupid like that so the FDA will approve the name. It can't be named something that infers other powers. But, the maker tries as much as it can to do just this.

So, you get names like viagra- rhymes with niagra which makes people think of niagra falls which gives the impression of power.

Using your name as a trademark or servicemark does not require registration, just as creating an original work of writing, music, etc. doesn't require obtaining a copyright -- it just makes things easier legally if there's ever any dispute over ownership.


It doesn't just make it easier.....it makes it possible to fight for your material.

According to copyright laws, your work is considered protected, as soon as it is published, on a tangible entity. However, if you intend to fight someone on the grounds of infringement.....it NEEDS to be registered, or the court will dismiss it.

Originally posted by ANMMark
It doesn't just make it easier.....it makes it possible to fight for your material.

According to copyright laws, your work is considered protected, as soon as it is published, on a tangible entity. However, if you intend to fight someone on the grounds of infringement.....it NEEDS to be registered, or the court will dismiss it.

That isn't my understading of it -- though I know more about trademark law than copyright law -- and I'm definitely not a lawyer :eek:

Well, technically it would be the same with a trademark. You simply cannot go to court on the grounds of trademark infringement, if your name is not trademarked. There are actual penalties for claiming trademark, when you don't have one.

Originally posted by systame
TeeDubya-A Studios, knowhymsayn?

:D

Hmm...although very funny that one just doesn't do it for me. :)

Originally posted by ANMMark
Well, technically it would be the same with a trademark. You simply cannot go to court on the grounds of trademark infringement, if your name is not trademarked. Exactly right. You can't bring action in a US federal court for trademark infringement unless the mark is registered with USPTO. Being able to establish your rights to and first use of the mark in other ways will help you defend an infringement claim someone else makes against you, but in order to take someone else to court for infringing on your mark you first have to register it.

See http://www.uspto.gov/web/offices/tac/doc/basic/register.htm

Great link JayC. That sums it up.

I think a lot of these things will be more and more clear as the Internet e-commerce business continues to gain ground. I hope, though, that we can continue to operate in a free market. I think it would be best advised to seek the registration and guarantee your are operating your business without the possibility of being doubted in a court of law.

Something little off topic, but still relevant to this discussion, is the latest on the Patriot II act (http://www.wired.com/news/privacy/0,1848,63800,00.html?tw=wn_tophead_1). If you thought the first one was going to infringe upon your rights, better read up on this new version.

But again, I digress....

Since we are on a legal discussion I just have a question. When looking for a lawyer what kind of lawyer do you want? Is there such a thing as an Internet Lawyer? Sorry, for my lack of knowledge as I am just getting into the business.

Originally posted by jdkhost
Since we are on a legal discussion I just have a question. When looking for a lawyer what kind of lawyer do you want? Is there such a thing as an Internet Lawyer? Sorry, for my lack of knowledge as I am just getting into the business.

For this specific issue you'd want a Patent & Trademark attorney. A 'general practitioner' isn't likely to know much about trademark law.

But, if you're not currently in litigation :mad: I highly recommend Nolo Press legal books:
http://nolo.com/

Ok thanks, I just wanted to know who I should speak with just to have some backing incase I ever need it. Thanks for the link I will check it out.

Originally posted by jdkhost
Since we are on a legal discussion I just have a question. When looking for a lawyer what kind of lawyer do you want? Is there such a thing as an Internet Lawyer? Sorry, for my lack of knowledge as I am just getting into the business.

I have had prior occasion to retain the services of Carl Oppedahl of Oppedahl & Larson, www.patents.com. Their website is an invaluable resource on Internet law, even if you don't retain their services. DIY TM HowTo there if you look. Carl wrote the book in many ways on Internet Patent & Trademark law. Pretty solid backing, unless you're trying to come after me that is... ;)